Online courts have truly come of age during the pandemic and Melina Efstathiou, Head of Litigation Technology at Eversheds Sutherland, has been right in the middle of this dramatic change from in-person hearings to an entirely digital infrastructure.
‘There has been a mentality shift that was years in the making. The pandemic happened and it went from paper to completely digital,’ said Efstathiou, (pictured above) whose role has been central to making this transition run smoothly at her firm.
This work has covered helping to manage the tech and processes behind three main areas:
- The virtual hearings and interviews around each dispute.
- The eDiscovery and investigations work.
- The infrastructure for moving and sharing the litigation materials, and keeping track of each case.
‘There is a lot of logistics behind the scenes to make the virtual hearings work,’ she noted. They’ve been working with Opus2, the litigation technology platform, but there isn’t as yet one complete system for online courts that everyone uses.
There are, for example, half a dozen or more video conferencing systems that different parties use. It can create a complicated mesh of tech applications that a court is suddenly completely reliant upon to function.
‘The use of multiple types of software for different tasks has not been as seamless as we would like,’ she noted.
(Below is an AL TV interview with Efstathiou, which goes into far more detail. 27 mins approx. Press play to watch/listen inside the page.)
Video has also created some unique challenges, such as ‘are you talking to the right people?’. And that could of course be a real issue if a lawyer thought they were having a private conversation, for example, and in fact everyone was listening in.
Efstathiou added that their firm has not experienced that yet, but there was an occasion when a key witness was giving their evidence and the video went down. The witness kept going, but no-one was hearing it. They then had to do it again, but ‘the moment’ was lost.
And that is one of the challenges of video – remoteness does matter. Efstathiou explained that sometimes parties involved in a dispute ‘just need to pick up the phone’ to get a more immediate sense of communication.
How have the judges dealt with all of this? Artificial Lawyer has met several judges who are driving hard on innovation, as much as any other legal tech pioneer, but not everyone is on the same page. Given their pivotal role, how has that been?
Interestingly, Efstathiou noted that tech company Opus2 and other vendors are providing training to the courts on how all the tech works, giving them a doubly important role now in the justice system. That said, she noted that her firm also provides training to the solicitors and barristers involved as well.
Also, Efstathiou said: ‘Judges have been eager to use the tech, but, the superheroes are the clerks of the court, they manage all of this. It has astounded me how tech savvy they are.’
So, a big shout out to the clerks of the court, perhaps the unsung heroes of all this change to online disputes.
All well and good. But is this having a positive impact? Does this make things more efficient? Save money? Save time?
The simple answer is: yes, to all of those questions.
‘It does have an economic benefit. The budgeting and cost projections change when you remove all the travelling costs and waiting costs [for the lawyers]. It’s been massive,’ Efstathiou explained.
It also makes things move faster, as the digitised files make it easier for everyone to quickly access the key passages in the text. No more sitting there for ages as everyone wades through folder after folder trying to find the right page.
‘Important information, such as key terms and facts can be pre-highlighted (digitally),’ she added as an example. Everyone with access to those files all sees the same highlighted areas at once. Also, no need for individuals to mark up lots of separate files with those good, old highlighter pens.
Overall, Efstathiou said: ‘The time efficiency and cost efficiency is undeniable.’
Efstathiou also noted that collaboration has increased between everyone involved in a case, and this has been made possible by the tech bringing people together, not just online during the hearing, but on working together more easily ahead of it.
That said, it’s not all perfect. Efstathiou acknowledges that there remains the reality that sometimes a defendant would prefer to be physically in front of a judge, even in a commercial case, as it allows them to convey more than just words to the courtroom. And of course, criminal trials really do need to be as in-person as possible. After all, sending someone to prison without even looking them in the eye would be to the detriment of the justice system.
Her view is that when we get over this pandemic that we will likely move to hybrid courts, where what needs to be done in-person will be in-person, and the rest will be online. That way you get the best of both worlds.
Last word. Are the changes that we have seen with the new importance of a digital infrastructure, even if we return to a hybrid setting after the pandemic, going to last?
‘Yes,’ Efstathiou concluded. ‘This is permanent.’